Fee-Shifting Provision in Elder Abuse Law Vetted An Important Public Policy.
The Fifth District in Bickel v. Sunrise Assisted Living, Case No. F062443 (5th Dist. May 21, 2012) (certified for publication) involved a plaintiff suing defendant assisted living facility for elder abuse. Plaintiff entered into a residency agreement with an arbitration clause, with the lower court granting a defense petition to compel arbitration but severing a provision that stated each side would bear their own fees/costs in the arbitration no matter which side prevailed. Eventually, plaintiff prevailed in the arbitration, awarded $666,725.30 in fees and $94,694.70 in costs.
The severance decision was affirmed on appeal. The primary basis was that the Welfare and Institutions Code section 15657 fee-shifting provision (unilateral in favor of the abused elder) vetted an important public policy of promoting remedial legislation protective of a vulnerable sector of society. In finding that fee recovery in this area could not be waived by an elder, the appellate court applied by analogy the analysis from Armendariz v. Foundation Health Psychcare Services, Inc., 24 Cal.4th 83, 121-122 (2000) (an employment case), concluding that this “heightened” remedy was nonwaivable by the elder.
See also a related blog post on Bickel at California Mediation and Arbitration.